Qin v. Canada (Minister of Citizenship and Immigration), (2013) 427 F.T.R. 163 (FC)

• Judge: Gleason, J.
• Court: Federal Court (Canada)
• Case Date: December 05, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2013), 427 F.T.R. 163 (FC);2013 FC 147

Qin v. Can. (M.C.I.) (2013), 427 F.T.R. 163 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. MR.005

Qin Qin (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-1543-12; 2013 FC 147; 2013 CF 147)

Indexed As: Qin v. Canada (Minister of Citizenship and Immigration)

Federal Court

Gleason, J.

February 8, 2013.

Summary:

Qin, a citizen of China, graduated from a Canadian university and began working for a law firm in Toronto. She carried out administrative duties and assisted with translation and interpretation for the firm's Chinese clientele. She applied for permanent residence as a member of the Canadian Experience Class (Immigration and Refugee Protection Regulations, s. 87.1). She sought to qualify under National Occupational Classification (NOC) Codes 1242 (legal administrative assistants) and 5125 (translators, terminologists and interpreters). An officer denied her application. He concluded that Qin lacked the requisite experience because (1) her salary was significantly lower than the minimum salary applicable to the two NOC Codes, and (2) she had not shown that she carried out more than one of the main duties of NOC Code 1242. Qin applied for judicial review.

The Federal Court allowed the application, set aside the officer's decision, and remitted the matter for redetermination by a different officer. The court directed that Qin be given an opportunity to file additional evidence and make additional submissions regarding her salary and the nature of her work experience. The court certified two questions.

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer (incl. duty of fairness) - Qin, a citizen of China, graduated from a Canadian university and began working for a law firm in Toronto where she performed administrative, translation and interpretation duties - She applied for permanent residence as a member of the Canadian Experience Class - She sought to qualify under National Occupational Classification (NOC) Codes 1242 (legal administrative assistants) and 5125 (translators, terminologists and interpreters) - An officer denied her application - He concluded that Qin lacked the requisite experience because, inter alia, her salary was significantly lower than the minimum salary applicable in Toronto to the two NOC Codes - In making this assessment, the officer had relied on wage information from the Human Resources and Skills Development Canada (HRSDC) website - Qin applied for judicial review - The Federal Court allowed the application - The officer had violated procedural fairness by failing to disclose to Qin that he was considering the HRSDC wage data and to provide her with an opportunity to make submissions - The officer had doubts as to whether Qin had fulfilled the requirements of NOC Code 1242 and he considered the wage data to resolve those doubts - Had Qin been aware of the officer's concerns, she could have provided evidence relating to average wages paid in small law firms to people of similar experience, and more detail about the kind of work she was performing - The officer's consideration of the data was a key step in his reasoning and not something that Qin could reasonably have anticipated might be an issue - The court ordered that the matter be remitted to a different officer to allow Qin to make additional submissions regarding her salary and the complexity of her duties - See paragraphs 37 to 41.

Aliens - Topic 1230.5

Admission - Immigrants - Application for admission - Immigrant visa - Canadian Experience Class - Qin, a citizen of China, graduated from a Canadian university and began working for a law firm in Toronto where she performed administrative, translation and interpretation duties - She applied for permanent residence as a member of the Canadian Experience Class - She sought to qualify under National Occupational Classification (NOC) Codes 1242 (legal administrative assistants) and 5125 (translators, terminologists and interpreters) - An officer denied her application - He concluded that Qin lacked the requisite experience because, inter alia, her salary was significantly lower than the minimum salary applicable in Toronto to the two NOC Codes - In making this assessment, the officer had relied on wage data from the Human Resources and Skills Development Canada (HRSDC) website - Qin applied for judicial review, arguing that it was improper for the officer to have considered the HRSDC data - The Federal Court rejected this argument - Only the more senior and complex jobs in the administrative category qualified as occupations for the Canadian Experience Class - In evaluating whether Qin's experience fell within a permissible NOC Code, the officer was required to understand the nature of the work performed and the complexity of the tasks undertaken - Salary was typically one indicator of complexity - Average wages paid in the Toronto area were therefore relevant to the assessment of Qin's experience - The fact that Qin was required to have her employer attest to her salary in a reference letter indicated that salary would be considered - The officer had not used salary as a preliminary disqualifying factor - If this were the case, it would have been unnecessary for him to continue on with an analysis of Qin's duties - The court certified a question on this issue because it was the first time the issue had arisen in the case law and it would apply broadly to future applicants - See paragraphs 20 to 36 and 46.

Aliens - Topic 1230.5

Admission - Immigrants - Application for admission - Immigrant visa - Canadian Experience Class - [See Aliens - Topic 1230 ].

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - Qin's application for permanent residence as a member of the Canadian Experience Class was denied - The officer concluded that she lacked the requisite experience because, inter alia, Qin's salary was significantly lower than the minimum salary applicable to her position - In making this assessment, the officer had relied on wage information from the Human Resources and Skills Development Canada (HRSDC) website - Qin applied for judicial review - At issue was the standard of review applicable to the interpretation of the Immigration and Refugee Protection Regulations implicit in the officer's decision to consider the HRSDC wage data in assessing Qin's experience - The Federal Court found that it was required to apply the correctness standard of review - Although recent Supreme Court of Canada jurisprudence suggested that the reasonableness standard applied, the Federal Court of Appeal had indicated that the correctness standard applied - The Federal Court of Appeal's rulings in Khan (2011) and Patel (2011) were directly on point and thus binding on the court - In recognition of the tension between the SCC and FCA case law, the court certified the following question: "What standard of review is applicable to a visa officer's interpretation of the Immigration and Refugee Protection Regulations, SOR/2002-227 and to an officer's assessment of an application under the Immigration and Refugee Protection Regulations, SOR/2002-227?" - See paragraphs 9 to 13 and 47.

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - Qin's application for permanent residence as a member of the Canadian Experience Class was denied - The officer concluded that she lacked the requisite experience because, inter alia, she had not shown that she carried out more than one of the main duties of the National Occupational Classification (NOC) Code that she sought to qualify under - Qin applied for judicial review - At issue was the standard of review applicable to an officer's assessment of an applicant's work experience when compared to the descriptions in the NOC matrix - The Federal Court held that the reasonableness standard applied - The court certified a question regarding this issue - See paragraphs 14 to 16 and 47.

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope of standard of - Qin, a citizen of China, graduated from a Canadian university and began working for a law firm in Toronto where she performed administrative, translation and interpretation duties - She applied for permanent residence as a member of the Canadian Experience Class - She sought to qualify under National Occupational Classification (NOC) Codes 1242 (legal administrative assistants) and 5125 (translators, terminologists and interpreters) - An officer denied her application, finding that she lacked the requisite experience - Qin applied for judicial review - The respondent asked the court to rule on Qin's alleged ineligibility under NOC Code 5125 - The Federal Court allowed Qin's application on the grounds that there had been a breach of procedural fairness - The court ordered that the matter be remitted to a different officer to allow Qin to file additional evidence - It was unnecessary and inappropriate to consider the respondent's request because additional evidence regarding Qin's experience within NOC Code 5125 might be placed before the officer on re-determination - Thus, any commenting on the issue by the court would be superfluous and potentially prejudicial - In addition, because the reasonableness standard applied to the review of officers' assessments of applications, it was outside the proper scope of review for the court to substitute its views for those of an officer in matters of candidate suitability - See paragraphs 43 to 45.

Aliens - Topic 1305

Admission - Immigrants - Judicial review - Evidence - Qin's application for permanent residence as a member of the Canadian Experience Class was denied - The officer concluded that she lacked the requisite experience because, inter alia, Qin's salary was significantly lower than the minimum salary applicable to her position - Qin applied for judicial review - The officer filed an affidavit in which he explained that he had obtained the comparator wage from the Human Resources and Skills Development Canada (HRSDC) website, which contained extensive data on the hourly wages earned in each National Occupational Classification Code - Qin asserted that several paragraphs of the officer's affidavit should be struck as they attempted to impermissibly bolster his decision - The Federal Court struck the impugned paragraphs because they constituted further and expanded argument setting forth additional reasons why the decision had been made - See paragraphs 17 to 19.

Aliens - Topic 4069

Practice - Judicial review and appeals - Certification of question of general importance by Federal Court - [See first Aliens - Topic 1230.5 and first Aliens - Topic 1304 ].

Aliens - Topic 4521

Evidence - Affidavits - General - [See Aliens - Topic 1305 ].

Cases Noticed:

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 8].

Zhao v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 31; 2012 FC 75, refd to. [para. 8].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 10].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 10].

Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3; 410 N.R. 127; 2011 SCC 1, refd to. [para. 10].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 10].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 10].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 339 D.L.R.(4th) 428; 2011 SCC 61, refd to. [para. 10].

Grusas v. Canada (Minister of Citizenship and Immigration) (2012), 413 F.T.R. 82; 2012 FC 733, refd to. [para. 10].

Nabizadeh v. Canada (Minister of Citizenship and Immigration) (2012), 407 F.T.R. 74; 2012 FC 365, refd to. [para. 10].

Khan v. Canada (Minister of Citizenship and Immigration) (2011), 426 N.R. 12; 2011 FCA 339, refd to. [para. 11].

Patel v. Canada (Minister of Citizenship and Immigration) (2011), 419 N.R. 321; 2011 FCA 187, refd to. [para. 11].

Takeda Canada Inc. v. Canada (Minister of Health) et al. (2013), 440 N.R. 346; 2013 FCA 13, refd to. [para. 11].

Hilewitz v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706; 340 N.R. 102; 2005 SCC 57, refd to. [para. 11].

dela Fuente v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 387; 350 N.R. 362; 2006 FCA 186, refd to. [para. 11].

Shahid v. Canada (Minister of Citizenship and Immigration) (2011), 419 N.R. 259; 2011 FCA 40, refd to. [para. 11].

Toussaint v. Canada (Attorney General) (2011), 420 N.R. 364; 2011 FCA 213, refd to. [para. 13].

Lukaj v. Canada (Minister of Citizenship and Immigration) (2013), 424 F.T.R. 243; 2013 FC 8, refd to. [para. 13].

Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al. (2012), 427 N.R. 110; 2012 FCA 40, refd to. [para. 13, footnote 1].

Suzuki (David) Foundation v. Canada (Minister of Fisheries and Oceans) - see Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al.

Thiruguanasambandamurthy v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 767; 2012 FC 1518, refd to. [para. 14].

Talpur et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 13; 2012 FC 25, refd to. [para. 14].

Kalra v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 512; 2003 FC 941, folld. [para. 17].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449, refd to. [para. 17].

Vancouver Wharves Ltd. v. International Longshoremen's and Warehousemen's Union, Local 514, [1985] B.C.W.L.D. 1701; 60 N.R. 118 (F.C.A.), refd to. [para. 17].

Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness) (2008), 382 N.R. 2; 2008 FCA 255, folld. [para. 18].

Cheng v. Canada (Secretary of State) (1994), 83 F.T.R. 259; 25 Imm. L.R.(2d) 162 (T.D.), dist. [para. 22].

Tam v. Canada (Minister of Citizenship and Immigration) (1997), 130 F.T.R. 237; 38 Imm. L.R.(2d) 116 (T.D.), dist. [para. 22].

Stemijon Investments Ltd. v. Canada (Attorney General) (2011), 425 N.R. 341; 2011 FCA 299, refd to. [para. 23].

Patel v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 335; 2011 FC 571, refd to. [para. 30].

Hassani v. Canada (Minister of Citizenship and Immigration) (2006), 302 F.T.R. 39; 2006 FC 1283, refd to. [para. 38].

Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.), refd to. [para. 38].

Qureshi v. Canada (Minister of Citizenship and Immigration) (2009), 354 F.T.R. 256; 2009 FC 1081, refd to. [para. 38].

Tariku v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 309; 2007 FC 474, refd to. [para. 38].

Toma et al. v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 485; 2006 FC 780, refd to. [para. 38].

Amoateng v. Canada (Minister of Citizenship and Immigration) (1994), 90 F.T.R. 51; 26 Imm. L.R.(2d) 317 (T.D.), refd to. [para. 38].

Khan v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 331; 2009 FC 302, refd to. [para. 44].

Arora v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 166; 2011 FC 241, refd to. [para. 44].

Kane v. Canada (Attorney General) et al. (2012), 437 N.R. 206; 2012 SCC 64, refd to. [para. 44].

Szabo et al. v. Canada (Minister of Citizenship and Immigration) (2012), 422 F.T.R. 152; 2012 FC 1422, refd to. [para. 44].

Counsel:

Mario D. Bellissimo, for the applicant;

Lorne McClenaghan, for the respondent.

Solicitors of Record:

Bellissimo Law Group, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application for judicial review was heard in Toronto, Ontario, on December 5, 2012, before Gleason, J., of the Federal Court, who delivered the following judgment and reasons for judgment on February 8, 2013.